United States District Court, D. Arizona
BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE
Louie Anthony Rangel, acting pro se, has filed the
instant action pursuant to 42 U.S.C. § 405(g) seeking
review of the final decision of the Commissioner of Social
Security. (Doc. 1). The Magistrate Judge has jurisdiction
over this matter pursuant to the parties' consent. (Doc.
11). See 28 U.S.C. § 636(c). Pending before the
Court are Plaintiff's Opening Brief (Doc. 16),
Defendant's Brief (Doc. 17), and Plaintiff's Reply
Brief (Doc. 21). For the following reasons, the
Court remands this matter for further proceedings.
February 16, 2012, Plaintiff protectively filed applications
for disability and disability insurance benefits.
(Transcript/Administrative Record (“Tr.”) 20,
see also Tr. at 166-71). Plaintiff alleged
disability as of June 15, 2011 due to hypertension, anxiety,
and depression. (Tr. at 166, 196). Plaintiff's
applications were denied initially and upon reconsideration.
(Tr. 101-04, 112-19; see also Defendant's Brief
at 2 n. 1). Upon Plaintiff's request for hearing,
Administrative Law Judge (“ALJ”) Nancy M. Stewart
held a hearing in San Diego, California, on March 6, 2014,
where Plaintiff who was represented by counsel, and a
vocational expert testified. (Tr. 37-72). On April 30, 2014,
the ALJ issued her decision denying Plaintiff's request
for benefits. (Tr. 21-31). Thereafter, the Appeals Council
denied Plaintiff's request for review (Tr. 1-7), making
the ALJ's decision the Commissioner's final decision
for purposes of judicial review. Plaintiff then initiated the
was born on January 29, 1959 and was 55 years of age as of
the date of the hearing. (Tr. at 44-45). Plaintiff
completed school through “a couple of classes” in
the ninth grade and “didn't really go to school in
junior high actually.” (Tr. at 45). All of
Plaintiff's prior work, from 1977 through June 15, 2011,
has been in construction, primarily pouring and finishing
concrete or as a labor foreman. (Tr. at 207-201; see also
Id. at 63 (describing concrete work as “all knee
work. . . .[Y]ou get on kneeboards.”).
stated that he grew up in a violent home with “an
alcoholic, bipolar father” (Tr. at 384), and that his
sister attempted suicide in the past, (Tr at 327). At the
time of the hearing, Plaintiff lived with his wife and his
11-year-old autistic son. (Tr. 50-51, 407). The record also
reflects that during some of the relevant period, Plaintiff
also lived with his mother. (See Tr. at 222).
stated that he could no longer work because “people bug
me and depression [sic] really bad. [T]o[o] many meds [sic]
high blood pressure. Don't like people speeding.
Don't trust no one.” (Tr. at 218). Plaintiff
testified that he has headaches and dizziness every time he
gets up from the couch. (Tr. at 46). He also experiences head
rushes if he bends down to pick up something. (Tr. at 47). He
experiences shortness of breath and uses inhalers for asthma.
(Tr. at 49, 56). He stops breathing when he is sleeping,
which wakes him up, and his insurance will not cover a sleep
study. (Tr. at 48-49).
back and knees ache. (Tr. at 46). Plaintiff's knees hurt
if he walks too much and become stiff if he sits too much.
(Tr. at 53; see also Tr. at 274 (Plaintiff's
knees hurt when he walks)). He can sit for ten minutes at
most because of his knees and his racing thoughts. (Tr. at 54
(he cannot sit still)). He can only stand for about as long
as it takes to make a sandwich because of dizziness and
aching knees and legs. (TR. at 55). His asthma makes it
difficult to walk more than 800 feet. (Tr. at 56; see
also Tr. at 227 (Plaintiff indicated he could walk one
block before needing to rest for about five minutes)).
becomes ill if he experiences stress and he “snap[s] a
lot too. I was diagnosed with bipolar, so I've got my
little mood swings.” (Tr. at 47; see also Tr.
at 58 (Plaintiff has “mood swings” where he
becomes “really angry and then I'll snap.”).
Plaintiff also experiences panic attacks despite his
medication for same. (Tr. at 47). He becomes anxious when
driving and “can't put up with traffic….I
get real, real nervous. An anxiety attack or
something.” (Tr. at 51) When he is having a panic
attack, Plaintiff has difficulty breathing, he sweats, and
his “blood pressure goes up, heart pounding.”
(Tr. at 57). When he is having a panic attack, he has to lie
down and “rest my mind. If I rest my mind, I'm okay
for a little while.” (Tr. at 58).
testified that has difficulty being around a lot of people,
loud sounds, or lights. (Tr. at 57). He does not trust
people. (Id.). Even at home, he stays to himself for
long periods of time. (Tr. at 58). However, he does like
being around his wife and son, “[b]ut if it is somebody
else, I don't like being around them. I'll go in my
room. The TV's on, little kids, that's stuff that
bugs me and I can't cope with it.” (Tr. at 59).
Plaintiff does not engage in social activities because he is
“[a]lways depressed” and does not trust anyone.
(Tr. at 227). Plaintiff also testified that about three times
a week, he sees things that he describes as “something
black that's not there or something dark” and he
hears mumbling. (Tr. at 56-57).
medications include inhalers for asthma, and dipropionate,
hydrochlorothiazide, lisinopril, amlodipine besylate, and
losartan for high blood pressure. (Tr. at 258; see
also Tr. at 738). Medications for depression, mood,
anxiety, and bi-polar disorder include Cymbalta, clonazepam,
and Abilify. (Tr. at 258, 738; see also Tr. at 407
(Plaintiff has also taken Risperdal for mood stabilization)).
He has also been prescribed trazodone for insomnia.
The ALJ's Decision
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R.
§§404.1520, 416.920. To establish disability, the
claimant must show that: (1) he has not performed substantial
gainful activity since the alleged disability onset date
(“Step One”); (2) he has a severe impairment(s)
(“Step Two”); and (3) his impairment(s) meets or
equals the listed impairment(s) (“Step Three”).
Id. “If the claimant satisfies these three
steps, then the claimant is disabled and entitled to
benefits. If the claimant has a severe impairment that does
not meet or equal the severity of one of the ailments
listed…, the ALJ then proceeds to step four, which
requires the ALJ to determine the claimant's residual
functioning capacity (RFC)….After developing the RFC,
the ALJ must determine whether the claimant can perform past
relevant work…. If not, then at step five, the
government has the burden of showing that the claimant could
perform other work existing in significant numbers in the
national economy given the claimant's RFC, age,
education, and work experience.” Dominguez,
808 F.3d at 405.
The ALJ's Findings in Pertinent Part
determined that Plaintiff “has the following severe
impairments: asthma; affective disorder; high blood pressure;
headaches; osteoarthritis of the bilateral knees, right worse
than left knee which is mild; and obesity[.]” (Tr. 22
(stating that Plaintiff's “sleep apnea and history
of alcohol abuse in remission are non severe impairments
because they do not cause the claimant more than mild
limitations.”)). In making her decision, the ALJ also
considered the impact of Plaintiff's obesity “in
conjunction with his knee impairments.” (Tr. 28). The
ALJ found that Plaintiff had the RFC
to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except lift and carry 25 pounds frequently and 50
pounds occasionally; pushing and pulling within those weight
limits, occasionally as to the lower extremities; no foot
pedals as to the right extremity; stand and/or walk 6 hours
in an 8 hour workday, no prolonged walking greater than 2
hours at a time; sitting 6 hours in an 8 hour workday;
ability to stand and stretch not to exceed 10% of the time;
no ladders, ropes or scaffolds; no work hazards such as
working at unprotected heights, operating dangerous or fast
moving machinery or driving commercial vehicles; no
respiratory irritants or temperature extremes; postural
activity can be performed on an occasional basis; occasional
contact with the public, coworkers and supervisors; unskilled
work involving simple routine tasks; and no fast paced work
in a static work environment.
(Tr. 26). Based upon the vocational expert's testimony at
the hearing, the ALJ determined that Plaintiff was unable to
perform his past work as a concrete stone finisher. (Tr. 29).
The ALJ relied on the vocational expert's testimony to
further determine that Plaintiff would be able to perform
other work such as: linen room attendant, Dictionary of
Occupational Titles (“DOT”) 222.387-030;
laundry worker I, DOT 361.684-014; and shoe cleaner, DOT
788.687-122. (Tr. 30). Therefore, the ALJ found that
Plaintiff was not disabled under the Social Security Act from
June 15, 2011 through the date of the ALJ's decision.
argues that the Appeals Council erred by failing to consider
new evidence (See Complaint at 2; see also
Defendant's Brief at 5-6) and that the ALJ erred by: (1)
omitting evidence from a nurse practitioner; (2) rejecting
Plaintiff's treating psychiatrist's opinion; (3)
“giving her opinions on matters outside her area of
expertise”; and (4) discounting Plaintiff's
credibility. (Plaintiff's Opening Brief at 1-3).
Defendant counters that Plaintiff's new evidence does not
justify a remand for further administrative proceedings.
Defendant also argues that the ALJ's decision is
supported by substantial evidence in the administrative
record and should be affirmed.
Court has the “power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. §405(g). The factual
findings of the Commissioner shall be conclusive so long as
they are based upon substantial evidence and there is no
legal error. 42 U.S.C. §§ 405(g); Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court
may “set aside the Commissioner's denial of
disability insurance benefits when the ALJ's findings are
based on legal error or are not supported by substantial
evidence in the record as a whole.” Tackett v.
Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations
evidence is “‘more than a mere scintilla[, ] but
not necessarily a preponderance.'”
Tommasetti, 533 F.3d at 1038 (quoting Connett v.
Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see
also Tackett, 180 F.3d at 1098. Further, substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Where “the evidence can support either outcome, the
court may not substitute its judgment for that of the
ALJ.” Tackett, 180 F.3d at 1098 (citing
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992)). Moreover, the Commissioner, not the court, is charged
with the duty to weigh the evidence, resolve material
conflicts in the evidence and determine the case accordingly.
Matney, 981 F.2d at 1019. However, “the
Commissioner's decision ‘cannot be affirmed simply
by isolating a specific quantum of supporting
evidence.'” Tackett, 180 F.3d at 1098
(quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
Cir.1998)). Rather, the court must consider the record as a
whole, weighing both evidence that supports and evidence that
detracts from the Commissioner's conclusion, and may not
affirm simply by isolating a specific quantum of supporting
evidence. Id.; Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014). The court shall “review only the
reasons provided by the ALJ in the disability determination
and may not affirm the ALJ on a ground upon which he did not
rely.” Garrison, 759 F.3d at 1010.
Plaintiff's request for review was pending before the
Appeals Council, Plaintiff submitted additional records.
(See Tr. at 1-6). Although the Appeals Council
accepted and considered some of the evidence, it declined to
accept evidence from 2015 because the ALJ “decided your
case through April 30, 2014. This information is about a
later time. Therefore, it does not affect the decision about
whether you were disabled beginning on or before April 30,
2014.” (Tr. at 2; see also Tr. at 6). The
Appeals Council also advised that Plaintiff could file a new
application for benefits if he wanted the Commissioner to
consider whether he was disabled after April 30, 2014. (Tr.
at 2). The evidence the Appeals Council declined was not made
part of the administrative record.
alleges that the Appeals Council erroneously rejected a form
from a doctor because it was dated 2015. (Complaint at 2). To
better assess Plaintiff's claim that evidence was
improperly omitted, the Court directed Plaintiff to submit
the 2015 evidence that the Appeals Council rejected.
(See Docs. 22, 24). Plaintiff initially filed
documents that did not appear to encompass the evidence
submitted to the Appeals Council and he requested an
extension to submit the appropriate documents because he had
been unable to fully view the Court's order permitting
him to file that evidence. (Doc. 26). The Court granted the
requested extension. (Doc. 24). Thereafter, Plaintiff
submitted documents consisting of: a four-page form, dated
August 18, 2015, from Dr. Daniell requesting that Plaintiff
be assessed as seriously mentally ill (“SMI”); an
August 19, 2015 letter indicating that Plaintiff has been
approved for SMI services; other August 2015 documentation
concerning verification of Plaintiff's SMI determination;
and an October 15, 2015 letter from recovery coach Jordan
Picrom indicating that Plaintiff “currently receives
services” at COPE Community Services
(“COPE”) and that Plaintiff has been diagnosed
with bipolar affective disorder and agoraphobia with panic
attacks. (Doc. 26).
Plaintiff's matter was pending before the Appeals
Council, the regulations provided that: “If new and
material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the
period on or before the date of the administrative law judge
decision.” 20 C.F.R. §§404.970(b)(1),
416.1476(b)(1).The Appeals Council's decision to
reject the 2015 records submitted by Plaintiff comported with
the applicable regulations.
the plaintiff presents new evidence to the district court
during the course of his appeal, the court may remand the
case to the Commissioner to take additional evidence pursuant
to sentence six of 42 U.S.C. 405(g), “but only upon a
showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such
evidence into the record in a prior
proceeding….” 42 U.S.C. § 405(g). Plaintiff
bears the burden of showing good cause exists for the failure
to submit the evidence in a timely fashion. Clem v.
Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). Evidence is
material if it bears “directly and substantially on the
matter in dispute.” Burton v. Heckler, 724
F.2d 1415, 1417 (9th Cir. 1984). Plaintiff can establish good
cause by showing he could not have obtained or submitted the
evidence before the Commissioner issued a final decision.
Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
“At a minimum, such evidence must be probative of
mental or physical impairment.” Id. (citation
omitted). “A claimant does not meet the good cause
requirement simply by obtaining a more favorable report from
an expert witness once his claim is denied.”
Clem, 894 F.2d at 332.
addition to the 2015 records the Appeals Council rejected,
Plaintiff also submitted to this Court other records from
2011, 2014 and 2015, primarily from COPE. (See
Doc. 23). Some of the 2014 records are duplicative of those
contained in the administrative record, but others are not.
The 2014 COPE treatment notes reflect that Plaintiff's
wife reported that he “continue[d] to be unmanageable
and…paranoid” (Doc. 23 at 6 (April 2014));
Plaintiff exhibited poor concentration on mental status
examination (Id. at 9 (February 2014));
Plaintiff's speech was pressured, his mood was anxious,
and he reported he sees shadows at night and hears voices
(Id. at 11 (January 2011)); Plaintiff
“appeared to have some memory difficulty” when
discussing medication review (Id. at 12 (January
2014)); and Plaintiff denied “suicidality at present
but reports he does have suicidal thoughts
‘sometimes'” and noting Plaintiff's flat
affect, pressured speech, anxious mood, limited
insight/judgment and that he has hallucinations, seeing
shadows and things moving (Doc. 23 at 14 (January 2011)). In
sum, the records are probative of Plaintiff's mental
impairment and symptom allegation, as well as treating Dr.
Caplin's opinion. See e.g., Key, 754 F.2d at
1551. However, Plaintiff has not explained why the 2011 and
2014 records were not previously submitted to the ALJ or the
Appeals Council. Nonetheless, as discussed below, the Court
has determined to remand this matter pursuant to sentence
four of §405(g) on an open record for other reasons. In
light of Plaintiff's pro se status, and because
the matter will be remanded on an open record for other
reasons and the records submitted here are material to
Plaintiff's claim, remand is also appropriate under
sentence six of §405(g) for the ALJ to consider these
records on remand.
Nurse Practitioner's evidence
alleges that the ALJ “would not look at any of the
mental health evidence provided because it was signed by a
N.P.” (Complaint at 2). He argues that
“[e]vidence was omitted regarding [his] mental health
by the ALJ Judge Nancy M. Stewart, he had been seen by a
Nurse Practitioner not a Medical Doctor.”
(Plaintiff's Opening Brief at 1).
hearing, Plaintiff's attorney referred the ALJ to a
February 24, 2014 record from Dale Hawking, Physician Nurse
Practitioner at COPE, which informed that Plaintiff was being
evaluated for a SMI determination. (Tr. 42 (referring to
exhibit B17-F which is at Tr. 693)). The ALJ responded that a
Physician Nurse Practitioner is “not an acceptable
medical source, but it is a medical professional and goes to
the weighting and all that.” (Tr. 43).
Security regulations place medical professionals into two
different categories: “acceptable” medical
sources and “other” medical sources. 20 C.F.R.
§§404.1513(a), (d), 416.913(a), (d). A nurse
practitioner falls within the “other source”
category. See Popa v. Berryhill, F.3d. __, 2017 WL
4160041, at *5 (9th Cir. August 18, 2017), as
amended (September 20, 2017) (“The Social Security
regulations provide an out-dated view that considers a nurse
practitioner as an ‘other source.'”); see
also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012) (“‘other sources…are not entitled to
the same deference” as acceptable medical sources)).
The ALJ must “provide ‘germane reasons' to
reject [a nurse practitioner's]…opinions[;]”
Popa, __ F.3d at __, 2017 WL 4160041, at *5,
whereas, a more stringent standard is applied to rejection of
opinions from “acceptable medical sources”.
Consistent with the regulations, the ALJ's statement
appears merely to reflect that a nurse practitioner is not
considered to be an “acceptable medical source”
as defined by the regulations. The ALJ's decision does
not indicate that she refused to consider any evidence merely
because it came from a nurse practitioner.
regard to the specific record by NP Hawking that was
discussed at the hearing, the attorney stated that the SMI
determination had not been completed and that she thought it
would be “forthcoming within probably 30 days.
They're scheduling everything.” (Tr. 43). The ALJ
responded in pertinent part: “Okay, cause I can't
hold the record open for something that hasn't been done
yet.” (Id.). That conversation occurred on
March 6, 2014, the ALJ's decision issued on April 30,
2014. No SMI determination was submitted to the ALJ between
the hearing date and the date the ALJ issued her
the ALJ issued her decision, Plaintiff submitted to the
Appeals Council updated treatment records and other documents
he believed would support his claim. (See Tr. at
1-6). Although the Appeals Council considered several of the
documents Plaintiff submitted it declined to accept and
consider records dated after the ALJ's decision.
(See Tr. at 2).
argues that “Cope omitted papers [sic] years of records
from Nurse Practitioner only one on record.”
(Plaintiff's Opening Brief at 2 (citing Tr. 693)).
Defendant responds that Plaintiff is presumably referring to
Nurse Practitioner Hawking's statement that Plaintiff
received mental health treatment at COPE “‘back
to 2005 or so as well.'” (Defendant's Brief at
12 (quoting Tr. 693)). The record does contain some records
from various providers dating back to 2005 and before.
(See e.g., 347, 351-354, 356-94; see also
350 (August 2001 prescriber log)).
“ALJ's duty to supplement a claimant's record
is triggered by ambiguous evidence, the ALJ's own finding
that the record is inadequate or the ALJ's reliance on an
expert's conclusion that the evidence is
ambiguous.” Webb v. Barnhart, 433 F.3d 683,
687 (9th Cir. 2005). The Court agrees with Defendant to the
extent that treatment records from 2005 would likely have
limited probative value in light of Plaintiff's June 15,
2011 alleged onset date. Moreover, the current record
reflects Plaintiff's history, including his longstanding
diagnoses of depression and anxiety, prior to the alleged
onset date. (See e.g., Tr. 350 (August 2001
prescription activity log noting diagnoses of depression,
anxiety disorder, and polysubstance abuse by history)), Tr.
367 (June 23, 2005 working diagnoses of panic disorder
without agoraphobia, alcohol abuse, rule out bipolar
disorder, and noting “emergence of agoraphobia”);
Tr. 375-95 (June 28, 2005 record including Behavioral Health
and Medical History Questionnaire, Core Assessment, Mental
Status Examination, and Clinical Formulation and Diagnoses),
Tr. 363-65 (June 30, 2005 diagnoses of anxiety disorder, rule
out panic disorder with agoraphobia, depressive disorder,
history of alcohol abuse, past history of amphetamine,
cocaine abuse)). The ALJ also stated that “[t]o give
the claimant every benefit of the doubt, I have considered
all of the claimant's records, including those for
treatment prior to his alleged onset date in order to
determine his impairments and functioning from his alleged
onset date to present.” (Tr. at 24). On the instant
record, there is no indication that the 2005 COPE records
were not obtained because they were authored by a nurse
practitioner. Consequently, the record does not support
Plaintiff's contention that the ALJ erred by declining to
consider evidence for the reason that it came from a nurse
Treating Doctor's Opinion Regarding Mental
challenges the ALJ's decision to reject treating
psychiatrist Olga Caplin's opinion.
opinions and conclusions of treating doctors are accorded
special weight because treating doctors are in a unique
position to know claimants as individuals, and because the
continuity of their dealings with claimants enhances their
ability to assess the claimants' problems. See Embrey
v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); Bray
v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228
(9th Cir. 2009) (“A treating physician's opinion is
entitled to substantial weight.”) (internal quotation
marks and citation omitted); Winans v. Bowen, 853
F.2d 643, 647 (9th Cir. 1987); 20 C.F.R. §§
treating physician's medical opinion “is given
‘controlling weight' so long as it is
‘well-supported by medically acceptable clinical
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence [in the claimant's] case
record.'” Trevizo v. Berryhill, __ F.3d
__, 2017 WL 4053751, at *7 (9th Cir. Sept. 14, 2017) (quoting
20 C.F.R. §404.1527(c)(2)); see also Orn v.
Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (same)); 20
C.F.R. § 416.927(c)(2). When the treating doctor's
opinion is not given controlling weight, “it is
weighted according to factors such as the length of the
treatment relationship and the frequency of examination, the
nature and extent of the treatment relationship,
supportability, consistency with the record, and
specialization of the physician.” Trevizo, __
F.3d. at __, 2017 WL 4053751, at *7 (citing 20 C.F.R. at
404.1527(c)(2)-(6); see also 20 C.F.R. §
416.927(c)(2)); see also SSR 96-2P, 1996 WL 374188,
*4 (“Adjudicators must remember
that a finding that a treating source medical opinion is not
well-supported by medically acceptable clinical and
laboratory diagnostic techniques or is inconsistent with
other substantial evidence in the case record means only that
the opinion is not entitled to “controlling weight,
” not that the opinion should be rejected. Treating
source medical opinions are still entitled to deference and
must be weighed using all of the factors provided in 20 CFR
404.1527 and 416.927. In many cases, a treating source's
medical opinion will be entitled to the greatest weight and
should be adopted, even if it does not meet the test for
controlling weight.”). Thus, even if the treating
physician's opinion does not meet the test for
controlling weight, the treating physician's opinion may
still be entitled to the greatest weight and should be
adopted. Orn, 495 F.3d at 631. Importantly, the
ALJ's failure to consider the factors for weighting the
opinion “alone constitutes reversible error.”
Trevizo, __ F.3d. at __, 2017 WL 4053751, at *7.
an ALJ may reject a treating doctor's uncontradicted
opinion only after giving “‘clear and
convincing' reasons supported by substantial evidence in
the record.” Reddick v. Chater, 157 F.3d 715,
725 (9th Cir. 1998) (quoting Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995)). “Even if the treating
doctor's opinion is contradicted by another doctor, the
ALJ may not reject this opinion without providing
‘specific and legitimate reasons' supported by
substantial evidence in the record.” Id., 157
F.3d at 725 (citing Lester, 81 F.3d. at 830).
Additionally, “like the opinion of a treating doctor,
the opinion of an examining doctor, even if contradicted by
another doctor, can only be rejected for specific and
legitimate reasons that are supported by substantial evidence
in the record.” Lester, 81 F.3d at 830-31.
Dr. Caplin's Opinion and the ALJ's rejection of
August 2012, Plaintiff's treating psychiatrist Olga
Caplin, who had treated Plaintiff since February 2012,
completed a Medical Impairment Residual Functional Capacity
Questionnaire. (Tr. at 489-94). Dr. Caplin diagnosed: r/o
bipolar II and mood disorder, nos. (Tr. 489). She stated that
“[i]nsomnia, headaches, anorexia, anxiety, depression,
and environmental stressors impair functioning. [History] of
aud. hallucinations.” (Id.). Dr. Caplin
indicated Plaintiff was unable to meet competitive standards
with regard to: maintaining regular attendance and being
punctual within customary, usual strict tolerances;
maintaining attention for two-hour segments; completing a
normal workday and workweek without interruptions from
psychologically based symptoms; performing at a consistent
pace without an unreasonable number and length of rest
periods; accepting instructions and responding appropriately
to criticism from supervisors; getting along with co-workers
or peers without causing them undue distraction or exhibiting
behavioral extremes; responding appropriately to changes in a
routine work setting; dealing with normal work stress;
understanding, remembering and carrying out detailed
instructions; dealing with stress of semiskilled and skilled
work; interacting appropriately with the general public;
maintaining socially appropriate behavior, and traveling in
unfamiliar places. (Tr. at 491-92). Dr. Caplin also indicated
that Plaintiff would be seriously limited but not precluded
from: understanding, remembering and carrying out short and
simple instructions; sustaining an ordinary routine without
special supervisions; working in condition with or proximity
to others without being unduly distracted; making simple
work-related decisions; asking simple questions or requesting
assistance; being aware of normal hazards and taking
appropriate precautions; setting realistic goals; making
plans independently of others; and adhering to basic
standards of neatness and cleanliness. (Id.). Dr.
Caplin stated that Plaintiff's “severe [and]
persistent mental illness” supported the assessed
Caplin further opined that Plaintiff was markedly restricted:
in activities of daily living; maintaining social
functioning; maintaining concentration, persistence or pace;
and that he had three episodes of decompensation within a
12-month period, each of at least two weeks in duration. (Tr.
at 493). She stated that Plaintiff would be expected to miss
more than four days of work per ...